Issue number 377 29 April 2019 - Ofcom
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Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Issue number 377
29 April 2019Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Contents
Introduction 3
Notice of Sanction
City News Network (SMC) Pvt Limited
6
Broadcast Standards cases
In Breach
Sunday Politics
BBC 1, 30 April 2017, 11:24 7
Zee Companion
Zee TV, 18 January 2019, 17:30 26
Resolved
Jeremy Vine
Channel 5, 28 January 2019, 09:15 31
Broadcast Licence Conditions cases
In Breach
Provision of information
Khalsa Television Limited 34
In Breach/Resolved
Provision of information: Diversity in Broadcasting
Various licensees 36
Broadcast Fairness and Privacy cases
Not Upheld
Complaint by Symphony Environmental Technologies PLC,
made on its behalf by Himsworth Scott Limited
BBC News, BBC 1, 19 July 2018 41
Complaint by Mr Saifur Rahman
Can’t Pay? We’ll Take It Away!, Channel 5, 7 September 2016 54
Complaint Mr Sujan Kumar Saha
Can’t Pay? We’ll Take It Away, Channel 5, 7 September 2016 65
Tables of cases
Investigations Not in Breach 77Issue 377 of Ofcom’s Broadcast and On Demand Bulletin 29 April 2019 Complaints assessed, not investigated 78 Complaints outside of remit 89 BBC First 91 Investigations List 94
Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Introduction
Under the Communications Act 2003 (“the Act”), Ofcom has a duty to set standards for
broadcast content to secure the standards objectives1. Ofcom also has a duty to ensure that
On Demand Programme Services (“ODPS”) comply with certain standards requirements set
out in the Act2.
Ofcom reflects these requirements in its codes and rules. The Broadcast and On Demand
Bulletin reports on the outcome of Ofcom’s investigations into alleged breaches of its codes
and rules, as well as conditions with which broadcasters licensed by Ofcom are required to
comply. The codes and rules include:
a) Ofcom’s Broadcasting Code (“the Code”) for content broadcast on television and radio
services licensed by Ofcom, and for content on the BBC’s licence fee funded television,
radio and on demand services.
b) the Code on the Scheduling of Television Advertising (“COSTA”), containing rules on how
much advertising and teleshopping may be scheduled on commercial television, how
many breaks are allowed and when they may be taken.
c) certain sections of the BCAP Code: the UK Code of Broadcast Advertising, for which Ofcom
retains regulatory responsibility for television and radio services. These include:
• the prohibition on ‘political’ advertising;
• ‘participation TV’ advertising, e.g. long-form advertising predicated on premium rate
telephone services – notably chat (including ‘adult’ chat), ‘psychic’ readings and
dedicated quiz TV (Call TV quiz services); and
• gambling, dating and ‘message board’ material where these are broadcast as
advertising3.
d) other conditions with which Ofcom licensed services must comply, such as requirements
to pay fees and submit information required for Ofcom to carry out its statutory duties.
Further information can be found on Ofcom’s website for television and radio licences.
e) Ofcom’s Statutory Rules and Non-Binding Guidance for Providers of On-Demand
Programme Services for editorial content on ODPS (apart from BBC ODPS). Ofcom
considers sanctions for advertising content on ODPS referred to it by the Advertising
Standards Authority (“ASA”), the co-regulator of ODPS for advertising, or may do so as a
concurrent regulator.
Other codes and requirements may also apply to broadcasters, depending on their
circumstances. These include the requirements in the BBC Agreement, the Code on Television
Access Services (which sets out how much subtitling, signing and audio description relevant
licensees must provide), the Code on Electronic Programme Guides, the Code on Listed Events,
and the Cross Promotion Code.
1
The relevant legislation is set out in detail in Annex 1 of the Code.
2
The relevant legislation can be found at Part 4A of the Act.
3
BCAP and ASA continue to regulate conventional teleshopping content and spot advertising for these
types of services where it is permitted. Ofcom remains responsible for statutory sanctions in all
advertising cases.
4Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
It is Ofcom’s policy to describe fully television, radio and on demand content. Some of the
language and descriptions used in Ofcom’s Broadcast and On Demand Bulletin may
therefore cause offence.
5Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Notice of Sanction
City News Network (SMC) Pvt Limited
Introduction
Channel 44 is an Urdu-language news and current affairs channel which broadcasts on satellite
and cable services. The Ofcom licence for this channel is held by City News Network (SMC) Pvt
Limited (or “the Licensee”).
This sanction related to comments made by a guest about the alleged actions of members of
the Ahmadiyya community1 in two episodes of the current affairs discussion programme Point
of View, broadcast on 4 and 11 December 2017.
In the breach decision published on 2 July 2018 in Issue 357 of the Broadcast and On Demand
Bulletin, Ofcom found that the programmes contained hate speech and language amounting
to abusive treatment of, and offensive to the Ahmadiyya community, in breach of Rules 2.3,
3.2 and 3.3 of the Code:
Rule 2.3: “In applying generally accepted standards broadcasters must ensure that
material which may cause offence is justified by the context”.
Rule 3.2: “Material which contains hate speech must not be included in television and
radio programmes except where it is justified by the context”.
Rule 3.3: “Material which contains abusive or derogatory treatment of individuals,
groups, religions or communities, must not be included in television and radio
services”.
In accordance with Ofcom’s penalty guidelines, Ofcom decided that it was appropriate and
proportionate in the circumstances to impose a financial penalty of £75,000 on the Licensee in
respect of these serious Code breaches (payable to HM Paymaster General). In addition, City
News Network (SMC) Pvt Ltd is directed to broadcast a statement of Ofcom’s findings in this
case, on a date and time to be determined by Ofcom.
The full sanction decision was published on 15 April 2019.
1
The Ahmadiyya community (or Ahmadi movement) identifies itself as a Muslim movement which
follows the teachings of the Qur’an. However, it is regarded as heretical by orthodox Islam since it
differs in its interpretation of the finality of prophethood. There are Ahmadiyya communities around
the world. They face restrictions in many Muslim countries and are described in publicly available
reports as one of the most persecuted communities in Pakistan. There have also been reports of
discrimination and threats against the community in the UK.
6Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Broadcast Standards cases
In Breach
Sunday Politics
BBC 1, 30 April 2017, 11:24
Introduction
Sunday Politics is a weekly current affairs programme featuring interviews and debates on
political issues. This edition was broadcast during the election period for the 2017 local
elections in Scotland (which ran from 22 March to 4 May 2017) and after it had been
announced that there would be a UK General Election taking place on 8 June 2017.
Ofcom received a complaint that, during an interview with the Scottish National Party
(“SNP”) former Scottish First Minister Alex Salmond, the presenter Andrew Neil used a “false
statistic” about literacy standards in Scottish primary schools. The viewer had previously
raised their concerns with the BBC in accordance with Ofcom’s published procedures. The
BBC had upheld the complaint at the final stage of its own complaints process and published
a finding1. However, the complainant had not been satisfied with the BBC’s response and
brought their complaint to Ofcom.
During the interview, Alex Salmond said that the SNP had protected public services. The
interview continued as follows:
Andrew Neil: “...If services have been so well protected, why after a decade of SNP rule do
one in five Scots pupils leave primary school functionally illiterate?”
Alex Salmond: “You’ve to take these things in the round, and Nicola Sturgeon’s2 made it a
top priority to address these challenges. But let’s take another statistic: 93%
of Scottish kids are now emerging from school to positive destinations. That
means to further education, to apprenticeships or to work”.
Andrew Neil: “Why are one in five functionally illiterate?”
Alex Salmond: “Well you argue one statistic – I’m arguing that in the round Scottish
education is putting in some substantially good performances like the 93%, a
record figure, who are going on to positive destinations. You can’t have a
failing education system if you’ve got that 93% and, incidentally, a record low
youth unemployment in Scotland. We’ve got the second lowest
unemployment rate in Europe. These pupils are being prepared by the
Scottish education system”.
The interview then continued on the issue of education and other matters relating to the
record of the SNP administration in Scotland.
1
Sunday Politics, BBC 1, 30 April 2017: Finding by the Executive Complaints Unit.
2
Current Scottish First Minister.
7Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
In the original complaint to the BBC, the complainant queried the meaning and the source of
the statistic, adding that it suggested that Scottish education was failing terribly, but that did
not reflect the complainant’s personal experience as a school teacher in a very large primary
school. The complainant had looked for the statistic in a number of Scottish education
reports but had been unable to locate its source.
The complaint was made to the BBC on 1 May 2017. We took into account the BBC’s various
responses to this case, including in relation to the source on which Andrew Neil based his
question (“why after a decade of SNP rule do one in five Scots pupils leave primary school
functionally illiterate?”):
• on 8 May 2017, in its first substantive response to the complainant, the BBC said: “A
quick search online shows that the statistic you refer to comes from a 2009 study;
reported here, for example: One in five Scots struggle with literacy, report reveals, The
Scotsman, 4 December 2009 [and] One in five Scots children leave primary school not
fully literate, The Telegraph, 4 December 2009”;
• after the complainant challenged this source, the BBC provided its second substantive
response on 17 May 2017, when it said to the complainant: “First of all, we would like to
apologise for giving you the incorrect statistics before. We have spoken to the
programme editors who have confirmed that the statistics Andrew [Neil] was referring to
in his questioning of Mr Alex Salmond was the Scottish Government’s 2014 Scottish
Survey of Literacy and Numeracy [“SSLN”], not the 2009 survey…”3; and
• on 23 June 2017 the complainant escalated the complaint to the BBC’s Executive
Complaints Unit (“ECU”). On 5 October 2017, the ECU wrote to the complainant
providing the BBC’s third and final substantive response, stating that: “Having conducted
our own research into the matter and consulted further with the programme, we agree
that this [statement] was not accurate. The figure was drawn from the 2009 Scottish
Survey for Literacy and Numeracy (which was not the most recent research into school
attainment) and it was not accurate to say that this allowed the conclusion quoted in the
programme. It should have been made clear that the phrase ‘functionally illiterate’ was
not used in that report and that its source was the education spokeswoman of the
Scottish Conservatives”.
On 28 November 2017, the BBC ECU published its finding4 which was to uphold the
complaint in this case. The BBC finding as originally published on 28 November 2017 said:
“The figure had originally been put forward by a spokesperson for the Scottish
Conservatives, as being based on the 2009 [SSLN]5. That survey, however, contained no
3
The complainant challenged this response on 19 May 2017 and reiterated that the BBC had failed to
correct the statistic or respond to the complaint with urgency during an election period. The BBC’s
replies of 2 and 13 June 2017 invited the complainant to escalate the complaint to the BBC’s Executive
Complaints Unit if they were dissatisfied with the BBC’s earlier responses.
4
See footnote 1.
5
Ofcom understands there was no SSLN in 2009 and the first such survey was in 2012. The SSLN is a
sample survey of Scottish pupils nearing the end of the school year in Primary 4 (age 8-9), Primary 7
(age 11-12) and Secondary 2 (age 13-14). It assesses their ability in reading, writing and listening and
8Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
reference to ‘functional illiteracy’, and no data which would have justified the claim in
question”.
The finding also said: the “Sunday Politics team has been reminded of the need to establish
the evidential basis of claims that are quoted in its questions”.
During Ofcom’s investigation, the BBC confirmed to Ofcom in April 2018 that it had changed
the published text of the ECU finding to include the following:
“The figure derived from the sum of the two lower bands for reading attainment in the
2014 [SSLN]. That survey, however, contained no reference to ‘functional illiteracy’, and
no data which would have justified that form of words as a description of its findings”.
As a weekly current affairs programme, Sunday Politics is not a news broadcast, and there is
therefore no requirement under the Broadcasting Code that facts discussed in the
programme be presented with due accuracy. However, we considered the broadcast content
raised potential issues under the following Code rule:
Rule 2.2: “Factual programmes or items or portrayals of factual matters must not
materially mislead the audience”.
We therefore requested comments from the BBC on how the programme complied with this
rule.
Response
The BBC’s representations
The BBC provided initial representations as well as representations from itself and from
presenter Andrew Neil on Ofcom’s Preliminary View, which was to provisionally record a
breach of Rule 2.2 in this case.
The BBC explained that typically before each Sunday transmission, the programme editor
and producer would send a briefing to the presenter, Andrew Neil on Friday evenings. The
briefing would consist of “notes on the topics to be covered in the programme and on the
contributors invited to discuss them, with suggested questions”. The BBC added that there
would be “exchanges between the presenter and the producer and Editor” on the day before
broadcast on the proposed content of the programme and that “[v]erification of factual
references is an integral part of this process”.
talking. Pupils are assigned one of four categories based on the percentage of questions they answer
correctly. The categories are ‘performing very well at the level’, ‘performing well at the level’, ‘working
within the level’, and ‘not yet working within the level’. For Primary 7 pupils, “not yet working within
the level” meant they had “successfully completed” 39% or less of the items, and “working within the
level” meant they had “successfully completed” more than 39%, but less than 60% of the “items” in
the SSLN. For secondary 2 pupils the corresponding cut-off points were 34% and 60%. In the 2014
SSLN, 3% of Secondary 2 Pupils were in the bottom category and 17% in the next category up for
reading, totalling 20% or one in five. For Primary 7 pupils, the corresponding figures were 3 and 9%,
totalling 12% or 3 in 25 pupils. See the Scottish Government’s Statistics Publication Notice on the 2014
SSLN.
9Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
After a further attempt to link the statement to an official statistical source in its initial
representations, the BBC now accepts that it was not based on any such source and that it
was therefore not accurate. However, inaccuracy in and of itself in non-news programmes
does not constitute a breach of the Broadcasting Code, and as stated above, as Sunday
Politics is not a news programme, the question for Ofcom to consider under Rule 2.2 is
whether the content was materially misleading to the audience so as to cause potential or
actual harm or offence.
The BBC referred to Andrew Neil’s representations on Ofcom’s Preliminary View (see below),
expressing the hope that having “considered the sources cited by Mr Neil” Ofcom would
“conclude that, despite the phrase ‘functionally illiterate’ going beyond what was warranted
by the 2014 SSLN, any inaccuracy here was not so materially misleading as to constitute a
breach of Rule 2.2”.
The BBC also referred to the following statement in its initial representations:
“…however characterised, the relevant statistics [from the 2014 SSLN] indisputably
showed a significant decline in literacy levels amongst primary school-leavers, as the
Scottish government had repeatedly acknowledged”.
In its further representations, the BBC said that this statement had arisen from an “incorrect
reading of the 2014 SSLN” and had been “added at a late stage of drafting by the Head of the
[BBC ECU]” as was the following statement:
“the intended effect [of the use of the term ‘functionally illiterate’] was rather to
encapsulate the general situation of declining levels of literacy amongst primary school-
leavers reflected in the [2014] SSLN report”.
The BBC apologised for this error saying that the above two statements did “not represent a
view held by BBC News in general or the programme-makers in particular”.
The BBC argued that rather than relating to a “single data set” as implied by the Preliminary
View, an assessment of the accuracy of the programme needed to take into account a
“considerably wider range of data”, as cited by Andrew Neil in his representations on the
Preliminary View (see below). It added that Andrew Neil’s question to Mr Salmond (“Why,
after a decade of SNP rule…?”) “related to a longer period…than is discussed in the
Preliminary View”.
The BBC emphasised in its representations that neither Alex Salmond, within the
programme, nor Nicola Sturgeon, speaking within the Scottish Parliament, had treated the
content as materially misleading. It acknowledged that broadcasters “should not rely on
others to correct their mistakes, and that the absence of challenge [by Mr Salmond] did not
of itself mean viewers were not misled”. However, the BBC argued that the reactions of Mr
Salmond and Ms Sturgeon were significant. It said that Alex Salmond and Nicola Sturgeon
were informed about and accustomed to debating the policy area of education. It added that
“…the least that can be inferred from their responses is that neither of them regarded the
statement in question as materially misleading (the implausible alternative being that they
did regard it as misleading but chose not to say so – indeed, in Ms Sturgeon’s case, to say
otherwise)”.
10Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
The BBC cited the subsequent interview with Nicola Sturgeon in The Andrew Marr Show on
14 May 2018. In this interview, Mr Marr had said the SNP’s record on literacy was
“absolutely terrible” and “…you have among 13 and 14-year olds only, less than half are now
performing well in reading and writing…”, to which Nicola Sturgeon had replied:
“Firstly, let me say I’ve been very open that that’s not good enough, but just to put that
into context, we have a survey that measures pupils in the second year of the secondary
school, but measures them against the standard they are expected to achieve in the third
year of secondary school, and we have other information that show that by the time
people are in the third year more than 80% are reaching the required level”.
Andrew Marr also said: “On numeracy and literacy, there’s no question that things have got
worse”, to which Nicola Sturgeon replied:
“I’m not denying that in terms of literacy and numeracy, and I’m telling you what we are
doing to address that…”.
In the BBC’s view, Nicola Sturgeon’s replies to the questions posed to her in The Andrew
Marr Show indicated she “accepted not only the premise that standards of literacy among
Scottish children were highly unsatisfactory, but also the premise that they had worsened
significantly while the SNP had been in office”. It added “In the context of a public debate in
which such premises were accepted by the First Minister of Scotland, we think it difficult to
maintain that Mr Neil’s question to her immediate predecessor…carried the potential for
harm to viewers discerned by the Preliminary View or was so misleading as to constitute a
breach of Rule 2.2”.
Andrew Neil’s representations on Ofcom’s Preliminary View
Andrew Neil also provided representations on Ofcom’s Preliminary View. While
acknowledging that his statement was not based on any statistical source and that it was
therefore inaccurate, Mr Neil set out the context surrounding the Scottish education debate
and referred to a number of sources published before and after the broadcast, in relation to
primary school leavers and secondary school pupils, to support his view that the statement
was not materially misleading. He said that in December 2009, Scotland’s Literacy
Commission had published a report (the “Literacy Commission report”), which had stated “A
good estimate would be that 18.5% leave primary school [in Scotland] without being
functionally literate”. Mr Neil added this report had “hung over Scotland’s educational
debate…” and that by the time of his interview with Alex Salmond the data used in the 2009
report was 10 years old. He said that the SNP had also been in power for 10 years in 2017
and had often stated its commitment to improving Scottish educational standards. Mr Neil
said it was therefore “legitimate to try to discover if things had got better in the decade of
SNP power”. Mr Neil also said that his “question to Mr Salmond was framed in a provocative
way to elicit a response that knocked my premise back”.
Andrew Neil said, “Evidence that Scottish literacy has improved between 2007 and 2017 is
hard to come by. Evidence that Scottish literacy has got no better, and could even be worse,
is clearer”. He cited “the respected independent Holyrood Magazine”, in comparing the 2012
and 2014 SSLN results, stating that “Fewer Scottish school children are good at reading and
writing” and that there was “falling literacy in Scottish schools”. He added that the decline
recorded in the 2014 SSLN was “not precipitous”, but it provided “scant evidence that
matters were improving, even from the existing low base”. He further added that
11Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
“Government politicians and policymakers in Scotland have worried, usually in private, rarely
in public, that not enough progress was being made to improve the situation revealed in the
2009 Literacy Commission report – indeed they feared there were signs it was getting
worse”. Mr Neil stated his belief that this was why Alex Salmond and Nicola Sturgeon did not
challenge the premise of his question – that 20% of primary school leavers were “functionally
illiterate” – because it was “all too credible, even if not exactly accurate, as I now realise”. He
added “My specific formulation of the situation was clearly open to challenge (and
subsequently was); but the underlying assumption – that literacy among young Scottish
pupils is a serious problem that is not being solved – is pretty robust”.
Andrew Neil cited various more recent statistics which showed, in his view, that literacy had
not been improving in Scottish schools over a number of years. For example, he stated that:
“The 2014 SSLN – published two years (2015) before the interview – had already provided
scant relief for those arguing literacy was improving; if anything, there was a deterioration”.
He added “Several months before the interview” the OECD published (in December 2016) its
latest international comparative study of schools – PISA – in which Scottish schools recorded
their worst ever PISA performance with declines for scores in maths, science and reading (my
emphasis)”.
Mr Neil said that in relation to primary school leavers in Primary 7:
• the 2016 SSLN report published one month after the broadcast of this programme found
that “those who could write well or very well had fallen from 72% in 2012 to 65% in
2016…[The] decline in reading was less marked – but it was still down two percentage
points on 2012”; and
• a “new official government study, using different methodology from SSLN, published in
December 2017 found only 69%...were reaching the expected reading standard, 76% in
writing. So over one in five in both cases were not”.
Mr Neil added that in relation to Secondary 2 pupils (those two years after leaving primary
school):
• “those who met the expected standard in writing had fallen from 64% in [the 2012 SSLN]
to less than half (49%) in [the 2016 SSLN]6 – a dramatic fall of 15 percentage points over
only four years; and
• in the 2016 SSLN those “who failed to meet the expected [Secondary 2] standard came
to 16% – one in six – compared with only 7% in” the 2012 SSLN7. Mr Neil argued that this
“suggests that something is seriously amiss in Scottish secondary schools in the early
years after primary school; or that the SSLN has been underestimating the literacy
problems of P7 primary school leavers”.
Andrew Neil said ‘functionally illiterate’ “does not mean illiterate in the sense of unable to
read or write. It means not possessing enough basic skills to be confident of handling many
normal reading and writing tasks”. He added that: “The SSLN does not use the term
6
For secondary 2 pupils’ performance in writing, the 2016 SSLN said that 33%, 14% and 2% (a total of
49%) were “performing well, very well or beyond the level”, with 35% “working within the level”.
7
The 2016 SSLN said 16% of secondary 2 pupils were “not yet working within the level” in writing.
12Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
[‘functionally illiterate’ and] I did not attribute it to the SSLN”. He accepted that “being in the
bottom two [SSLN categories] does not necessarily produce a combined ‘functionally
illiterate’ category”. However, Mr Neil argued that “the SSLN’s categorisations are somewhat
opaque and, for the second bottom category, not very demanding (working ‘within the level’
requires completing only 40% of the test or over)”.
Mr Neil said that “it would have been better if I had phrased my question along the lines of
‘why is literacy among Scottish school pupils still so bad – and maybe even getting worse’.
But I do not accept that the formulation I used seriously misled viewers about the gravity of
the situation”. He added that “evidence is strong that illiteracy in Scottish schools is still
deeply embedded in the system and that, far from improving, is likely getting worse, even
after 10 years of SNP government”. In conclusion, Mr Neil said that: “Questions can always
be better framed in retrospect. But I refute Ofcom’s draft conclusion that my question
seriously misled viewers about literacy problems in Scottish schools or misrepresented the
Scottish Government’s response to them. And I do not accept that it was even close to a
breach of…Rule 2.2”.
Investigation of the statistic (post-broadcast)
Ofcom also asked the BBC to explain why, having received the complaint during the Scottish
local election period and ahead of the UK General Election, the statistic was not fully
investigated and Mr Neil’s statement corrected at the time. The BBC said the complainant
received a substantive response to their first contact within a week and a response to their
second and third contacts within seven working days and two days respectively. It added
that there was no correction at that time because “unfortunately, the investigation did not
identify8 the inaccuracy in the terms in which [the statistic] was described…the context was
one where the claim in question had been effectively accepted, rather than disputed, by
successive First Ministers”.
The BBC also said that “the ECU investigation took a good deal longer than we would have
wished. It took place against the background of implementing new procedures and adjusting
to new demands arising from the 2018 Charter and the assumption by Ofcom, in early April,
of full regulatory authority over the BBC, and the situation was aggravated by unexpected
staff absences”.
Decision
Reflecting our duties under the Communications Act 2003, there is no requirement under
the Code that facts discussed in non-news programmes be presented with due accuracy.
However, section Two of the Code requires that generally accepted standards are applied to
provide adequate protection for members of the public from the inclusion of harmful or
offensive material in programmes.
8
The BBC said that “New light was thrown on the matter when the Sunday Herald published an
analysis by The Ferret fact-checking service published on 14 May [2017] – after the local elections but
before the BBC Complaints Team [provided the BBC’s second substantive response to the complainant
on 17 May 2017] – which made a strong case for regarding the claim as based on an inaccurate
interpretation of the statistical data. It is a matter of regret that this analysis went unnoticed by those
responsible for the 17 May message, but they would have to have been close followers of the Scottish
press to have become aware of it; it went virtually unreported in the media generally and, more
significantly, was not remarked upon by the Scottish government or the SNP”.
13Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Ofcom takes account of the audience’s and the broadcaster’s right to freedom of expression
set out in Article 10 of the European Convention on Human Rights. Ofcom acknowledges the
importance attached to freedom of expression in the broadcasting environment, which
encompasses the right to hold opinions and to receive and impart information and ideas
without undue interference by public authority.
The Code does not prevent broadcasters from covering subjects which may elicit strong
opinions, such as the Scottish Government’s record on education. It is crucial that
broadcasters have the editorial freedom to cover such topics. However, Rule 2.2 requires
broadcasters to ensure that facts are not misrepresented in a way which materially misleads
the audience. This is particularly important in current affairs programmes in which audiences
are likely to have high levels of trust. This is likely to be highest during election periods.
Misrepresentation
We first considered whether the question “why after a decade of SNP government, one in
five Scots pupils leave primary school ‘functionally illiterate’” misrepresented a factual
matter.
During the course of the BBC complaints process and of Ofcom’s investigation, the BBC
pointed to a range of sources for the statement that was made during the broadcast, none of
which provided a proper basis for the statistic used. In their latest representations, both the
BBC and Andrew Neil have accepted that the presenter’s question was not accurate and was
not based on an official statistical source.
We took into account the reference to a specific time (“after a decade”), and the repeated
use of the statistic “one in five” and of the term “functionally illiterate”. In our view, these
gave the overall impression that Andrew Neil was basing his allegation that “one in five [20%]
Scots pupils leave primary school functionally illiterate” on a specific statistical source
relating to primary school leavers, with reference to the year 2017. This approach, in our
view, gave viewers the false impression that Mr Neil’s question was founded on an
established fact or source, which recorded literacy levels upon leaving primary school
according to a recognised benchmark in the education sector of ‘functional illiteracy’.
In light of all the above, in our view the statement misrepresented a factual matter and was
misleading to viewers.
Material misleadingness
We then assessed whether this misrepresentation was materially misleading.
Under Rule 2.2, “Factual programmes or items or portrayal of factual matters must not
materially mislead the audience”. Ofcom’s Guidance to Rule 2.2 states that “…it is possible
that actual or potential harm and/or offence may be the result of misleading material in
relation to the representation of factual issues”. The Guidance also states that it is “designed
to deal with content that materially misleads the audience so as to cause harm or offence”
[emphasis in original] and not with “issues of inaccuracy in non-news programmes”. This
means that it is possible for a non-news programme such as Sunday Politics to include
inaccurate material without breaching the Code, if the inaccuracy is not materially
misleading. The Guidance also says: “Whether a programme or item is ‘materially’
misleading depends on a number of factors such as the context, the editorial approach taken
14Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
in the programme, the nature of the misleading material and, above all, either what the
potential effect could be or what actual harm or offence has occurred [emphasis in original]”.
Context provided by available statistics
The BBC argued that in the context of all the data given in Andrew Neil’s representations, his
statement was not materially misleading. Mr Neil said that “it would have been better if I
had phrased my question9 along the lines of ‘why is literacy among Scottish school pupils still
so bad – and maybe even getting worse’. But I do not accept that the formulation I used
seriously misled viewers about the gravity of the situation”. He added that “evidence is
strong that illiteracy in Scottish schools is still deeply embedded in the system and that, far
from improving, is likely getting worse, even after 10 years of SNP government”. Mr Neil also
said that “Questions can always be better framed in retrospect”.
We took into account Mr Neil’s argument that the fact his question could have been better
phrased does not mean in the particular context that it was materially misleading, and that
questions can always be better framed in retrospect. We also took into account that Sunday
Politics is a weekly programme which the editorial team and presenter prepare in advance,
as per the BBC’s explanation of the steps typically taken prior to each Sunday transmission
described above. In our view, given the content and phrasing of Mr Neil’s question, ordinary
viewers would have been likely to have understood that the statistic had been researched by
the editorial team and was a statistic of verifiable provenance that could be relied upon.
Therefore, we did not consider that ordinary viewers would have understood that the
statistic Mr Neil used in his question was paraphrasing for his personal interpretation that
literacy in Scottish school pupils was bad and getting worse.
We examined the sources available at the time of the broadcast which related to Scottish
primary school leavers to ascertain whether Mr Neil’s statement was consistent with those
indicators. Some of the statistics cited by Andrew Neil in his representations were not
published at the time of the interview in April 2017, and some related to secondary school
children rather than the focus of Andrew Neil’s question – namely children leaving primary
school. We acknowledged that some of the statistics which were available at the time of the
interview could have been used to argue that some of the metrics used to measure literacy
levels at the end of primary school in Scotland had slightly declined between 2012 and 2014
(by no more than between one and four percentage points in any specific instance), or to
support commentary on these literacy levels as at 201410. However, we took into account
9
“…why after a decade of SNP rule do one in five Scots pupils leave primary school functionally
illiterate?”.
10
For example:
• At the time of the interview the results of the 2012 and 2014 SSLNs were available. These showed
that the percentages of Primary 7 pupils (the final year of primary school children in Scotland):
-in the lowest category of performance (“not yet working within the level”) were: (for reading) 2%
and 3% respectively; (for writing) 3% and 5% respectively; and (for ‘listening and talking’) 9% and
8% respectively; and
-in the next category up of performance (“working within the level”) were: (for reading) 8% and
9% respectively; (for writing) 25% and 28% respectively; and (for ‘listening and talking’) 32% and
26% respectively. (The 2014 SSLN report did not compare results for ‘listening and talking’ in 2012
and 2014 because different “assessment approaches were adopted in each year”).
15Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
that Mr Neil’s statement was made by reference to a specific point in time (2017 – “after a
decade of SNP rule”) rather than a comparison exercise of trends, for example, between
2012 and 2014. Therefore, we carefully considered whether it was materially misleading to
characterise the available metrics as providing evidence that one in five Scottish primary
school leavers could be described as being ‘functionally illiterate’ in 2017.
With regard to Mr Neil’s use of the expression ‘functionally illiterate’, we note that the UK’s
National Literacy Trust describes ‘functional illiteracy’ by reference to adults: “Around 15 per
cent, or 5.1 million adults in England, can be described as ‘functionally illiterate’. They would
not pass an English GCSE and have literacy levels at or below those expected of an 11-year-
old. They can understand short straightforward texts on familiar topics accurately and
independently, and obtain information from everyday sources, but reading information from
unfamiliar sources, or on unfamiliar topics, could cause problems”11. The term is not
commonly used in relation to primary school children and, although it featured in the 2009
Scottish Literacy Commission Report cited by Mr Neil in his representations, it is Ofcom’s
understanding that it has not been used in any official statistical sources on Scottish
education since then. The 2009 Report itself only referred to “functional” literacy in its
introduction and in relation to available UK data (we discuss this source further below). The
Report discussed low levels of literacy and how to tackle the issue in general, among school
leavers (whether from primary or secondary school) as well as adults, and preferred the use
of the term “basic literacy” rather than “functional literacy”12.
In his representations, Andrew Neil said ‘functionally illiterate meant’ “not possessing
enough basic skills to be confident of handling many normal reading and writing tasks”. In
• The 2012 and 2014 SSLN reports described above also provided performance percentages for
Secondary 2 pupils (the second year of secondary school children in Scotland):
-in the lowest category of performance these were (for reading) 3% and 3% respectively; (for
writing) 7% and 12% respectively; and (for “listening and talking”) 17% and 18% respectively;
-in the next category up of performance these were: (for reading) 14% and 17% respectively; (for
writing) 29% and 33% respectively; and (for ‘listening and talking’) 37% and 31% respectively.
• In both age cohorts, (primary and secondary) the remaining pupils were either “performing well
at the level” or “performing very well at the level”, with some instances of pupils also performing
“beyond the level”. See footnote 9 for an explanation of the above performance categories and a
link to the statistics.
• The Scottish Government’s report “Programme for International Student Assessment (PISA) 2015:
Highlights from Scotland's results” states that a sample of pupils are assessed at the age of 15 and
that in the 2015 reading assessment in Scotland “the proportion of low performers increased
compared to 2012, but was lower than the OECD average”. It also showed that 17.9% of the
Scottish pupils sampled were below Level 2, which is the baseline level of proficiency in PISA and
the level “at which readers begin to demonstrate the competencies that will enable them to
participate effectively and productively in life as continuing students, workers and citizens” (see
PISA for Development Brief 8)
11
See its webpage “Adult Literacy” as at 19 November 2017. An updated version of this webpage
refers to “very poor literacy skills” instead of “functional illiteracy”.
12
Emphasis added. On page 3 of Scotland’s Literacy Commission Report 2009, functional illiteracy is
described as “young people leav[ing] school … without the basic literacy skills to function in a modern
society”. Where the Report refers to school leavers it is not evident that they refer to primary school
rather than secondary school leavers.
16Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
our view, this definition was Mr Neil’s own interpretation of the expression rather than a
definition taken from an academic or other source.
In any event as the BBC and Mr Neil both now accept, it was inaccurate to say that “after a
decade of SNP rule, one in five Scots pupils leave primary school functionally illiterate”. In
order to assess whether or not this was materially misleading, we considered how the
ordinary viewer would have understood Mr Neil’s question. In our view, the ordinary viewer
would have understood the meaning at the time of broadcast in 2017 to be “one in five
primary school leavers in Scotland are unable to carry out basic literacy skills expected of
children in that age group”.
Of the information cited by Mr Neil and the BBC in their representations relevant to primary
school leavers, only Scotland’s Literacy Commission Report 2009 and the 2012 and 2014
SSLNs were official sources available at the time of the interview. The 2009 report
contextualised its statement that “in Scotland 18.5% leave primary school without being
functionally literate” by stating that “There is no national/official measure of how many
children are going through the school system without acquiring basic literacy skills but, using
what information is available”, the 18.5% figure would be “a good estimate” on the basis of
UK data13. As this was an estimate, not based on data specific to Scotland and in a report
based on 2007 data which was 10 years old at the time of the interview, we considered that
it was not an adequate source of information against which to assess Mr Neil’s statement in
relation to educational performance in 2017 for the purpose of determining whether the
statement was materially misleading. The 2012 and 2014 SSLNs were based on data specific
to Scotland, and the 2014 SSLN was the most recent of the two. Therefore, we took into
account the 2014 SSLN when assessing Mr Neil’s statement. We also considered the 2016
SSLN. Although not available at the time of broadcast, it was published nine days later on
9 May 2017 and we therefore considered the 2016 SSLN in assessing whether the inaccuracy
was materially misleading.
• Primary 7 pupils
We considered that the 3%, 5% and 8% of primary 7 pupils who were “not yet working within
the level” (i.e. the bottom level of performance) in reading, writing, and listening and talking
respectively in the 2014 SSLN could be described as unable to carry out basic literacy skills
expected of 11-year olds14. The corresponding figures from the 2016 SSLN were 3%, 6% and
8%. Pupils falling within this category would have “successfully completed” 39% or less of the
items they were tested on. In our view, it would be materially misleading to use the higher
13
See: A Vision for Scotland: The Report and Final Recommendations of the Literacy Commission
December 2009. The report stated under the heading “UK Data” that “There is no national/official
measure of how many children are going through the school system without acquiring basic literacy
skills but, using what information is available, a good estimate would be that in Scotland 18.5% leave
primary school without being functionally literate”, which it defined as “without the basic literacy
skills to function in a modern society”.
14
Each percentage relates to different metrics for measuring various aspects of literacy (reading,
writing and ‘listening and talking’), and it would therefore be incorrect to add the percentage figures
to arrive at a total percentage of pupils in the bottom level of performance. As the measurements are
carried out among the same sample of pupils, there would also be double or triple counting issues
with this approach (for example the same pupil might be in the lower level for both reading and
writing, so that by adding the reading and writing percentages that same pupil would be taken into
account twice).
17Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
categories of attainment within the 2014 and 2016 SSLNs as evidence that the pupils falling
within these categories are unable to carry out basic literacy skills expected of their age
group. For example, the next level of performance, “working within the level”, included
pupils who had successfully completed up to 59% of the given assessment. We did not
consider that the ordinary viewer would have been likely to have associated this category of
performance (i.e. “working within the level”) with a lack of basic literacy skills for the
relevant age group. In his representations, Mr Neil accepted that “being in the bottom two
[SSLN categories] does not necessarily produce a combined ‘functionally illiterate’ category”,
though he also argued that “the SSLN’s categorisations are somewhat opaque and, for the
second bottom category, not very demanding (working ‘within the level’ requires completing
only 40% of the test or over)”. We considered that Mr Neil’s latter comment was a matter of
personal opinion rather than a widely accepted view on Scottish education statistics.
• Secondary 2 pupils
We considered that the 3%, 12% and 18% of secondary 2 pupils who were “not yet working
within the level” (i.e. the bottom level of performance) in reading, writing, and listening and
talking respectively in the 2014 SSLN could be described as unable to carry out basic literacy
skills expected of 14-year olds15. The corresponding figures from the 2016 SSLN were 2%,
16% and 15%. Pupils falling within this category would have “successfully completed” 34% or
less of the items they were tested on. In our view, it would be materially misleading to use
the higher categories of attainment within the 2014 and 2016 SSLNs as evidence that the
pupils falling within these categories are unable to carry out basic literacy skills expected of
their age group. For example, the next level of performance, “working within the level”,
included pupils who had successfully completed up to 59% of the given assessment. We did
not consider that viewers would have associated this category of performance with a lack of
basic literacy skills for the relevant age group.
In relation to the performance of Scottish secondary school children, we also took into
account the results of another source cited by Mr Neil in his representations, the 2015
Programme for International Student Assessment (PISA), published16 in December 2016. In
the PISA reading assessment undertaken by 15-year olds, students were placed in one of
seven levels, from level 1b (lowest) to level 6 (highest)17, with level 2 as a baseline level of
proficiency18. Level 2 proficiency is defined under the PISA classification19 as follows:
“Readers at level 2 can locate one or more pieces of information, which may need to be
inferred and may need to meet several conditions. They can recognize the main idea in a
text, understand relationships, or construe meaning within a limited part of the text when
the information is not prominent and the reader must make low-level inferences. Tasks at
this level may involve comparisons or contrasts based on a single feature in the text. Typical
15
Ibid.
16
See footnote 10, final bullet point.
17
See “Table 4. An overview of reading proficiency levels as they were described in the PISA 2012
study”, as found on page 35 of the Pisa 2018 Reading Literacy Framework.
18
See footnote 10, final bullet point.
19
See footnote 17.
18Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
reflective tasks at this level require readers to make a comparison or several connections
between the text and outside knowledge, by drawing on personal experience and attitudes”.
We considered that viewers would not have associated level 2 ability with a lack of basic
literacy skills for the relevant age group, and therefore focused on the next two levels below
level 2, i.e. level 1a (the next level down) 20 and level 1b (lowest level)21. The 2015 PISA
results for Scottish secondary pupils were that 4.4% were placed in level 1b and below and
13.5% were placed in the next level up, level 1a, a total of 17.9%.
We took into account the following with regard to the above statistics relating to the
performance of Scottish secondary school children:
• in relation to the 2014 and 2016 SSLNs, in comparing Mr Neil’s reference to 20% of
primary 7 pupils being “functionally illiterate” to the percentage of pupils in the 2014 and
2016 SSLN samples who were “not yet working within the level” (i.e. the bottom level of
performance), we acknowledged that 18% of secondary 2 pupils were in this category for
“listening and talking” in 2014 (falling to 15% in 2016) and that this was close to 20%.
However, fewer secondary 2 pupils were in this category for writing and for reading (12%
and 3%, respectively) in 2014 (the corresponding figures in 2016 were 16% and 2%); and
• in relation to the 2015 PISA figures for Scotland, we acknowledged that 17.9% of the
Scottish pupils sampled were below Level 2, which the OECD classifies as the baseline
level of proficiency in PISA and the level “at which readers begin to demonstrate the
competencies that will enable them to participate effectively and productively in life as
continuing students, workers and citizens” (see PISA for Development Brief 8).
However, the above sets of statistics related to Scottish secondary school pupils, and in the
case of PISA, 15-year old pupils, a population which is three years older than primary school
leavers. We therefore placed greater weight on the 2014 and 2016 SSLN results for primary 7
pupils, as it was pupils of this age to whom Mr Neil had referred in the interview.
Significantly less than 20% of primary 7 pupils were in the bottom level of performance (3%,
5 to 6% and 8% in reading, writing, and listening and talking, respectively) in the 2014 and
2016 SSLNs.
In light of the above, we considered that the context indicated that the question posed by
Mr Neil to Mr Salmond significantly misrepresented the actual situation in relation to literacy
levels amongst Scottish primary school leavers in 2017 and that his statement was a
significant departure from reasonable interpretations of the available data, such that it was
materially misleading to the audience.
20
Under the PISA classification, “Readers at level 1a can locate one or more independent pieces of
explicitly stated information; they can recognise the main theme or author’s purpose in a text about a
familiar topic, or to make a simple connection between information in the text and common, everyday
knowledge. Typically, the required information in the text is prominent and there is little, if any,
competing information. The student is explicitly directed to consider relevant factors in the task and in
the text”.
21
Under the PISA classification, readers at level 1b can “locate a single piece of explicitly stated
information in a prominent position in a short, syntactically simple text with a familiar context and
text type, such as a narrative or a simple list. Texts in level 1b tasks typically provide support to the
reader, such as repetition of information, pictures or familiar symbols. There is minimal competing
information. Level 1b readers can interpret texts by making simple connections between adjacent
pieces of information”.
19Issue 377 of Ofcom’s Broadcast and On Demand Bulletin
29 April 2019
Context in the form of public debate
In their representations, the BBC and Andrew Neil also relied on the reaction of
Alex Salmond and Nicola Sturgeon to the statistic as evidence that it was not materially
misleading. The BBC said that, during the interview, “Alex Salmond did not seek to dispute or
directly engage with the claim”. The BBC also said that following the interview Nicola
Sturgeon did not “dismiss” the statistic during a Scottish parliamentary debate. Andrew Neil
said that Alex Salmond and Nicola Sturgeon did not challenge the premise of his question –
that 20% of primary school leavers were “functionally illiterate” – because it was “all too
credible”. In our view, and as the BBC accepted in its further representations, the BBC and
other broadcasters should not rely on interviewees and others to directly address
misrepresentations in their programmes.
However, the BBC also argued that “…the least that can be inferred from [Mr Salmond and
Ms Sturgeon’s] responses is that neither of them regarded the statement in question as
materially misleading (the implausible alternative being that they did regard it as misleading
but chose not to say so – indeed, in Ms Sturgeon’s case, to say otherwise (‘…I do not dismiss
any of the statistics that Ruth Davidson cites…’))”. We disagreed. Although Alex Salmond did
not directly dispute the statistic, and Nicola Sturgeon at first appeared to accept it, both
challenged the idea that the Scottish education system was failing. In response to Mr Neil’s
question, Alex Salmond said “You can’t have a failing education system if you’ve got that
93%”, a reference to “a record [number of school leavers] who are going on to positive
destinations”. Nicola Sturgeon made a similar point in the Scottish Parliament after stating
that Ruth Davidson, in quoting Andrew Neil’s statistic, did “a disservice to young people”22).
In any case, irrespective of the fact that, arguably, Alex Salmond and Nicola Sturgeon only
indirectly disputed the statistic in question, this did not remove the fact that Mr. Neil’s
question did not reflect reality and that viewers were materially misled in this case.
The BBC also cited the First Minister’s appearance on The Andrew Marr Show on 14 May
2018, two weeks after the programme in this case. The BBC said that Mr Marr had said the
SNP’s record on literacy was “absolutely terrible” and “…you have among 13 and 14-year olds
only, less than half are now performing well in reading and writing…”, to which Nicola
Sturgeon had replied: “Firstly, let me say I’ve been very open that that’s not good enough”.
The BBC added that the First Minister had also said she did not deny that literacy had
worsened. Given this context it refuted that Mr Neil’s question to Mr Salmond in the present
case “was so misleading as to constitute a breach of Rule 2.2”. We disagreed. Mr Marr
framed his question by reference to broadly accurate statistics, and was consistent with the
reality of Scottish education at the time of the broadcast, relying on the 2016 SSLN23. By
22
The BBC referred in its submissions to Ofcom to an exchange in the Scottish Parliament on 3 May
2017 between Nicola Sturgeon and Ruth Davidson, in which Ms Davidson referred to the Sunday
Politics interview, noting that Mr Salmond had been asked why one in five children leaves primary
school functionally illiterate. She also asked about a separate statistic. Nicola Sturgeon replied
“…Although I do not dismiss any of the statistics that Ruth Davidson cites, I think that she does a
disservice to young people and teachers across the country”. She then listed some achievements of
the Scottish education system under the SNP administration, including “…record numbers of positive
destinations, which is more young people than ever before going into employment, further education
or training”.
23
Mr Marr said that “among 13 and 14-year olds only, less than half are now performing well in
reading and writing, and that’s gone down from 70% in just a few years, under the SNP”. This was a
reference to the results of the 2016 SSLN for Secondary 2 pupils, which were published after the
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